'••••.. 


Trying  A  Case 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


TRYING  A  CASE 


i  BY 

1LLIAM  No  GEMMILL,  Ph.B.,  LL.B.,  LL.D. 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


BLACKSTONE    INSTITUTE 
CHICAGO 


Copyright,    1920,    by    Blackstone    Institute 


'    T 

\%0 


WILLIAM  N.  GEMMILL 


WILLIAM  N.   GEMMILL 

Judge  William  N.  Gemmill  was  born  at  Shan- 
non, Illinois,  in  1860.  After  attending  the  com- 
mon schools,  he  entered  Cornell  College  at  Mt. 
Vernon,  Iowa,  from  which  he  graduated  in  1886. 
From  1886  to  1890  he  was  superintendent  of  pub- 
lic schools  of  Roekford,  Iowa.  From  1890  to  1892 
he  was  superintendent  of  the  public  schools  of 
Marion,  Iowa.  In  1892  he  entered  the  law  depart- 
ment of  Northwestern  University,  from  which  he 
graduated  and  was  admitted  to  the  bar  in  1892. 
After  that  he  practiced  law  continuously  in  Chi- 
cago until  1906,  when  he  was  elected  Judge  of  the 
Municipal  Court  of  Chicago.  He  has  held  this 
position  ever  since,  being  the  only  Republican 
associate  judge  re-elected  to  that  court  in  1912. 

For  one  year  he  presided  over  the  Court  of  Do- 
mestic Relations  and  tried  during  that  time  over 
one  thousand  cases  of  wife  and  child  abandonment. 

He  has  been  president  of  the  Illinois  branch  of 
the  American  Institute  of  Criminal  Law  and 
Criminology,  is  the  author  of  "Practice  in  Civil 
Actions"  in  Modern  American  Law,  and  has  writ- 
ten many  articles  that  have  been  widely  published 
in  various  magazines  and  legal  journals. 

He  is  a  lecturer  in  the  Chicago  Kent  College  of 
Law,  also  in  the  Chicago  Law  School,  from  which, 
latter  school  he  holds  the  degree  of  LL.D. 


TRYING  A  CASE 

By 

William  N.  Gemmill,  Ph.B.,  LL.B.,  LL.D. 

The  civilization  of  a  people  is  measured  by  the  qual- 
ity of  justice  administered  in  their  courts.  The  uni- 
versal appeal  of  society  has  been  to  the  courts,  whose 
sole  function  is  to  establish  rights  and  punish  wrongs. 
A  trial  is  the  final  process  by  which  these  rights  and 
wrongs  are  determined.  A  man  may  be  a  great  law- 
yer, but  unless  he  has  learned  the  means  by  which  the 
laws  are  crystallized  into  concrete  judgments,  he  will 
fail  in  the  final  test  in  the  courts.  No  lawyer  can 
discharge  his  duty  to  his  client  unless  he  has  both  the 
knowledge  of  the  law  and  the  skill  necessary  to 
apply  that  learning  at  the  bar.  He  must  know  how 
to  meet  every  situation  that  may  arise  during  the  trial 
of  a  case.  He  cannot  be  prepared  in  advance  to 
answer  all  the  legal  questions  that  may  arise,  but  he 
can  and  should  know  where  the  answers  to  these  ques- 
tions may  be  found,  and  he  can  acquire  a  skill  in  find- 
ing them  that  will  often  win  for  him  in  the  final 
contest. 

The  lawyer  who  enters  upon  a  trial  without  having 
mapped  out  every  step  of  his  advance  and  every  pos- 
sible assault  of  his  opponent,  discredits  the  high  pro- 


6  MODERN  AMERICAN  LAW  LECTURE 

fession  to  which  he  belongs.  His  acceptance  of  a  fee 
for  doing  anything  less  than  his  best  is  obtaining 
money  under  false  pretenses.  The  least  that  a  client 
may  expect  is  the  best  that  his  lawyer  can  do.  More 
cases  are  lost  in  court  because  of  a  lack  of  preparation 
and  skill  on  the  part  of  the  lawyer  than  because  of  a 
want  of  merit  in  the  case  itself.  The  following 
Lecture  is  designed  to  deal  with  questions  that  daily 
arise  in  court  concerning  which  both  laymen  and 
lawyers  show  much  ignorance  and  little  skill. 

PREPARATION  FOR  TRIAL. 

A  lawyer  has  no  more  right  to  enter  upon  the  trial 
of  a  case  without  preparation  than  a  surgeon  has  to 
operate  for  appendicitis  without  having  made  a  care- 
ful diagnosis  of  his  patient.  Neither  great  learning 
nor  skill  can  excuse  one  from  the  necessity  of  acquir- 
ing an  intimate  knowledge  of  the  facts,  and  of  making 
a  special  application  of  the  law  to  those  facts.  Two 
things  are  imperative  before  a  case  is  called  for  trial : 

First.   The  witnesses  must  be  interviewed. 

Second.  The  law  applicable  to  the  facts  must  be 
studied  and  briefed. 

Interviewing  Witnesses. 

A  lawyer  who  would  put  a  witness  upon  the  stand 
without  first  having  talked  with  him  not  only  jeop- 
ardizes his  own  reputation  but  risks  his  client's  cause. 
Success  upon  the  trial  requires  that  counsel  possess 
an  intimate  knowledge  of  what  every  witness  called 
by  him  knows  about  the  case  before  such  witness 


TRYING  A  CASE  7 

takes  the  stand.  The  turning  point  in  legal  battles  is 
often  some  bit  of  evidence  discovered  just  before  the 
trial  by  an  earnest  and  skillful  attorney. 

Witnesses  should  always  be  examined  individually 
and  never  in  groups.  Scrupulous  care  must  be  taken 
that  no  witness  may  ever  be  able  to  say  upon  the  stand 
that  any  part  of  his  evidence  was  suggested  by  coun- 
sel. Every  witness  must  be  examined  with  reference 
to  the  particular  knowledge  he  possesses.  A  serious 
mistake  is  often  made  by  propounding  the  same  ques- 
tions to  all  witnesses.  This  error  will  always  be 
obviated  if  an  attorney  classifies  his  witnesses  with 
reference  to  what  each  one  knows  of  the  facts  in- 
volved. 

No  witness  should  ever  be  called  to  the  stand  unless 
it  has  been  explained  to  him  in  advance  that  it  is 
not  only  the  right  but  the  duty  of  counsel  to  talk 
with  him  about  the  case.  He  should  be  warned  to 
tell  the  truth  frankly  and  fully  if  he  is  asked  upon 
the  stand  whether  he  had  talked  with  anyone  about 
the  case.  Over  one-half  of  the  women,  and  many  men, 
when  asked  on  cross-examination  whether  they  have 
talked  about  the  case  will  unhesitatingly  answer 
"No,"  when  it  is  apparent  to  everybody  present  that 
such  an  answer  is  false.  Such  answers  seriously 
prejudice  the  cause  for  which  the  witness  has  lied, 
and  are  made  not  because  the  witnesses  aim  to  tes- 
tify falsely,  but  because  of  their  ignorance,  coupled 
with  their  fear  that  some  wrong  may  be  done  to  the 
cause  they  represent. 


8  MODERN  AMERICAN  LAW  LECTURE 

Briefing  the  Law. 

No  one  knows  all  the  law.  This  is  just  as  true  of 
a  judge  as  of  a  lawyer.  The  volume  of  legal  prece- 
dents is  now  so  large  that  the  wisest  can  know  but  a 
fraction  of  them.  This  makes  it  absolutely  necessary 
that  the  law  applicable  to  any  given  set  of  facts  be 
carefully  briefed  before  entering  upon  the  trial.  In 
order  to  do  this  every  student  of  the  law  must  possess 
an  intimate  acquaintance  with  all  reference  books 
and  digests,  although  this  acquisition  alone  will  not 
enable  even  the  most  skillful  lawyer  to  meet  every 
emergency  that  may  arise  during  the  trial.  In  pre- 
paring a  brief  all  cases  cited  should  be  classified  as 
first,  second,  or  third.  In  the  first  class  should  be 
all  cases  directly  in  point  that  have  a  binding  author- 
ity upon  the  court.  This  class  includes  all  decisions 
of  the  final  court  of  review  for  that  jurisdiction.  The 
second  class  should  include  cases  in  other  jurisdic- 
tions that  are  in  point  but  are  not  binding  upon  the 
court.  The  third  class  should  include  cases  that  are 
not  entirely  in  point  but  which  bear  upon  some  ques- 
tions that  are  common  to  the  case  at  bar.  By  the 
use  of  this  classification  of  cited  cases  the  trial  lawyer 
is  well  equipped  for  an  emergency. 

DEMEANOR  IN  COURT. 

Few  lawyers  realize  that  when  in  court  they,  more 
than  their  clients,  are  upon  trial.  Justice  is  never 
achieved  automatically.  Its  instruments  are  sensi- 
tive human  beings,  drawn  from  every  walk  and 
experience  in  life  and  animated  by  all   sorts   of 


TRYING  A  CASE  9 

peculiar  notions  and  prejudices.  Verdicts  are 
largely  the  result  of  impressions.  These  impres- 
sions begin  the  moment  the  trial  opens.  An  un- 
favorable impression  of  a  lawyer  very  often  means 
an  adverse  verdict  for  his  client. 

Every  lawyer  should  seek  the  favorable  considera- 
tion of  the  jurors.  He  must  not  be  eccentric  in 
manner,  in  speech,  or  in  dress,  lest  he  offend  the 
simple-minded  juror.  He  must  be  neat  in  dress.  A 
sloven  seldom  fails  to  prejudice  at  least  one  of  the 
twelve  jurors.  He  must  be  clean  of  habit.  The 
tobacco-cud  lawyer,  who  squirts  his  tobacco  juice 
before  the  court,  no  longer  finds  favor  in  the  jury 
box  or  anywhere  else.  The  time  was  when  great 
lawyers  were  hard  drinkers  and  their  most  spectacu- 
lar successes  at  the  bar  were  often  achieved  while 
they  were  partly  under  the  influence  of  liquor.  That 
time  has,  happily,  passed  and  a  foul  breath  loaded 
with  an  intoxicant  and  wafted  in  an  unnatural  fervor 
to  the  jury  box  meets  an  indignant  response  from 
three-fourths  of  the  jurors. 

The  lawyer  must  always  be  courteous.  Verdicts 
are  never  won  by  browbeating  witnesses  or  by  direct- 
ing contemptuous  remarks  to  opposing  counsel  or  by 
disrespect  offered  to  the  court. 

EXAMINATION  OF  JURY. 

No  one  should  ever  forget  that  jurors  are  sensitive 
beings.  Some  are  proud.  Some  have  false  notions 
of  their  rights.  All  are  independent.  Whatever  may 
be  their  moral  standards  at  other  times,  as  jurors 
they  mean  to  be  honest.    A  professional  horse  thief 


10  MODERN  AMERICAN  LAW  LECTURE 

is  an  honest  man  in  the  jury  box  unless  his  cupidity 
is  aroused  by  an  appeal  to  his  self-interest. 

The  greatest  care  must  be  exercised  in  asking  ques- 
tions of  prospective  jurors.  A  lawyer  should  never 
ask  a  juror :  ' '  Do  you  own  any  property  V  In  four 
out  of  five  cases  jurors  will  mentally  resent  such  a 
question.  No  man  of  thirty-five  or  forty  years  wants 
to  acknowledge  in  public  that  he  is  a  pauper.  Always 
avoid  asking:  "Do  you  drink?"  or  "Do  you  smoke?" 
or  "Have  you  ever  had  any  trouble  with  your  wife?" 
Jurors  resent  these  questions  as  an  improper  inter- 
ference with  their  private  affairs  and  as  in  no  way 
affecting  their  eligibility. 

Never  ask  a  question  which  conveys  a  suspicion 
that  the  juror  is  unfair.  Never  try  to  retain  a  juror 
who  has  manifested  a  prejudice  against  your  oppo- 
nent. Remember  always  that  every  juror,  whether 
honest  or  dishonest,  demands  fair  play  when  he  is 
the  umpire  and  will  resent  every  form  of  trickery 
and  unfair  advantage. 

Make  your  examination  short.  A  long  and  tedious 
questioning  seldom  profits  the  examiner.  The  lawyer 
who  most  often  succeeds  is  the  one  who  gets  the  jury 
to  believe  that  he  has  the  utmost  confidence  in  them. 
The  only  legitimate  purpose  of  any  question  asked 
of  a  prospective  juror  is  to  determine  his  eligibility 
or  his  mental  bias.  No  question  should  be  asked  or 
permitted  which  does  not  aim  at  one  of  these  two 
things. 


TRYING  A  CASE  11 

OPENING  STATEMENT. 

A  lawyer  should  never  fail  to  make  an  opening 
statement  to  the  court  and  jury.  If  this  statement 
is  well  made  the  battle  is  half  won.  If  it  is  addressed 
to  the  court,  sitting  without  a  jury,  the  issue  should 
be  made  clear  before  any  evidence  is  taken.  If  it  is 
properly  made  to  the  jury  and  the  cause  is  a  merito- 
rious one  an  impression  will  be  made  that  will  be 
hard  to  eradicate  later. 

Never  overstate  your  case.  It  is  this  that  equips 
your  adversary  with  his  sharpest  arrows.  Never 
attempt  to  argue  the  law  in  the  opening  statement 
nor  to  draw  conclusions  from  the  facts  which  you 
propose  to  prove.  Let  the  jury  draw  its  own  conclu- 
sions. Make  the  facts  so  plain  that  there  can  be  little 
doubt  as  to  what  ought  to  be  the  outcome  of  the  trial. 
Do  not  try  to  become  eloquent  or  make  an  impas- 
sioned appeal;  both  are  ludicrous  at  this  time,  and 
you  should  reserve  your  best  effort  for  the  final  argu- 
ment. The  practice  of  the  defendant  of  reserving 
his  opening  statement  until  the  close  of  plaintiff's 
case  is  generally  unwise,  for  until  that  time  the  for- 
mer is  under  suspicion. 

CALLING  WITNESSES. 

Witnesses  should  be  called  in  some  logical  order. 
Usually  the  plaintiif  himself  should  be  called  first, 
especially  if  the  suit  is  one  for  personal  injuries,  for 
of  course  he  is  familiar  with  all  the  circumstances 
surrounding  the  injury.  Each  witness  thereafter 
should  be  called  with  reference  to  his  ability  to 


12  MODERN  AMERICAN  LAW  LECTURE 

strengthen  the  case  made  by  the  plaintiff. .  The  prac- 
tice of  reserving  the  plaintiff  for  the  climax  in  the 
trial  is  dangerous.  If  the  first  witnesses  appear  in- 
different an  unfavorable  impression  will  be  gained 
of  the  whole  case  which  will  be  hard  to  remove. 
Jurors  should  never  be  permitted  to  lose  their  in- 
terest during  the  progress  of  a  trial.  All  expert 
witnesses  should  be  reserved  for  the  last.  A  doctor 
should  never  be  called  to  testify  concerning  the  inju- 
ries of  a  plaintiff  until  after  the  plaintiff  has  been 
upon  the  stand.  Never  have  your  witnesses  talk 
through  an  interpreter  if  they  can  make  themselves 
understood  in  the  English  language. 

Asking  questions  is  an  art  which  but  few  lawyers 
have  mastered.  It  is  so  much  easier  to  cross-examine 
a  witness  than  it  is  to  examine  him  in  chief  that  the 
weak  lawyer  spends  most  of  his  time  during  the  trial 
indulging  in  what  he  calls  ' '  cross-examination. ' '  For 
a  lawyer  to  bring  out  all  that  his  witnesses  know 
upon  a  given  subject  without  asking  leading  questions 
requires  great  skill.  A  leading  question  is  one  which 
contains  a  suggestion  of  the  answer  desired;  it  is 
never  proper  on  direct  examination  unless  it  is  evi- 
dent the  witness  is  hostile  or  the  answer  called  for 
is  merely  preliminary  or  it  is  sought  to  contradict 
directly  some  testimony  previously  given.  Leading 
questions  must  especially  be  avoided  in  the  direct 
examination  of  children  and  others  who  may  be  under 
disability.  Always  avoid  asking  insulting  questions 
of  a  witness.  A  lawyer's  license  was  never  intended 
to  give  him  that  privilege.  These  questions  never 
injure  the  witness  half  so  much  as  they  do  the  ques- 


TRYING  A  CASE  13 

tioner.  It  is  bad  practice  to  ask  the  same  questions 
of  every  witness.  Seldom  can  all  witnesses  testify 
to  the  same  facts.  The  questions  to  each  witness 
should  be  confined  to  the  particular  facts  with  which 
he  is  conversant. 


GROSS-EXAMINATION. 

Most  lawyers  cross-examine  simply  because  the 
witness  has  been  turned  over  to  them  and  it  is  their 
turn.  They  usually  begin  by  asking  the  same  ques- 
tions asked  by  opposing  counsel  and  thus  give  the 
witness  an  opportunity  to  impress  further  upon  the 
minds  of  the  jury  his  former  testimony.  The  sole 
object  of  cross-examination  is  to  weaken  the  case  of 
your  adversary.  Unless  you  are  reasonably  sure  of 
doing  this  do  not  cross-examine.  The  writer  is  con- 
vinced that  in  over  one-half  of  the  cases  tried  cross- 
examination  has  strengthened  the  opposition.  No 
lawyer  should  cross-examine  unless  he  has  a  definite 
purpose  in  every  question  asked,  and  unless  he  is 
reasonably  certain  that  his  client  will  be  the  gainer 
thereby.  His  purpose  should  be  to  break  down  the 
story  of  a  witness  or  to  gain  an  admission  which  will 
be  of  advantage  to  his  cause. 

The  defendant  has  no  right  to  cross-examine  the 
plaintiff's  witnesses  upon  matters  pertaining  wholly 
to  the  defense.  Leading  questions  may  be  asked  in 
examining  an  adverse  witness  and  a  foundation  may 
thus  be  laid  for  impeaching  such  witness.  In  order 
to  lay  this  foundation  the  questions  asked  must  al- 
ways include  the  time  when,  the  place  where,  and 


14  MODERN  AMERICAN  LAW  LECTURE 

the  persons  with  whom  the  conversation  occurred  by- 
means  of  which  the  witness  is  to  be  impeached. 


THE  HYPOTHETICAL  QUESTION. 

Few  realize  how  large  a  factor  the  expert  witness 
has  become  in  our  judicial  procedure.  In  every  case 
where  professional,  mechanical,  or  scientific  knowl- 
edge is  required,  the  expert  is  indispensable.  A  case 
is  now  rarely  tried  where  the  rules  of  procedure  do 
not  require  that  certain  proof  be  made  by  means  of 
hypothetical  questions,  and  few  trial  lawyers  there 
are  who  have  given  this  subject  sufficient  considera- 
tion properly  to  propound  such  questions. 

A  hypothetical  question  must  always  be  abstract 
and  must  assume  all  the  facts  stated  therein  to  be 
true.  The  difficulty  that  generally  arises  in  stating 
such  questions  is  that  some  of  the  facts  assumed  are 
not  sufficiently  proved  by  the  evidence  in  the  case 
and  the  answers  based  upon  such  questions  are,  there- 
fore, misleading.  No  facts  should  be  assumed  that 
might  not  be  reasonably  found  by  the  jury  from  the 
evidence  in  the  case,  nor  should  facts  be  omitted  from 
the  questions  which  are  necessary  to  establish  the 
theory  of  the  case  and  which  appear  to  be  proved 
by  the  evidence  offered.  It  is  never  safe  to  ask  a 
mixed  question,  part  of  which  is  hypothetical  and 
part  based  upon  evidence  offered,  for  no  one  can  tell 
just  how  much  of  the  answer  is  based  upon  the  evi- 
dence and  how  much  upon  the  expert  knowledge  of 
the  witness. 


TRYING  A  CASE  15 

RECOLLECTIONS  REFRESHED  FROM  MEMORANDA. 

Great  uncertainty  exists  among  lawyers  as  to  how 
far  a  witness  may  go  in  refreshing  his  memory  from 
memoranda.  The  most  general  belief  exists  among 
the  members  of  the  bar  that  the  only  memoranda  that 
may  be  used  by  a  witness  are  such  as  were  made  by 
himself  at  the  time  the  transactions  occurred.  The 
rule,  however,  is  much  broader.  When  it  has  been 
shown  that  a  witness  cannot  testify  correctly  without 
refreshing  his  recollection  he  may  have  access  to  any 
writing  or  memorandum  which  he  knows  to  be  cor- 
rect, whether  made  by  him  or  by  someone  else,  and 
whether  made  at  the  time  of  the  transaction  or  at  any 
subsequent  time,  and  whether  such  memorandum  be 
an  original  or  a  copy,  the  only  test  being  whether, 
after  examining  the  document,  the  witness  can  truth- 
fully say  that  his  memory  has  been  refreshed  thereby. 
The  memorandum  thus  used  must  always  be  shown 
to  the  opposing  counsel  and  may  be  offered  in  evi- 
dence if  the  witness's  recollection  is  based  entirely 
upon  it. 

A  witness  may  be  permitted  to  look  at  a  book  con- 
taining memoranda  which  he  knows  to  be  correct  and 
to  testify  to  the  entries  in  the  same,  if  by  looking  at 
the  book  his  memory  of  the  original  transaction  has 
been  refreshed. 

DOCUMENTARY  EVIDENCE. 

Little  difficulty  is  encountered  during  a  trial  in 
making  proof  of  original  documents.  If  a  document 
is  one  executed  between  the  parties  to  the  litigation 


16  MODERN  AMERICAN  LAW  LECTURE 

proof  must  be  made  of  their  signatures.  If  it  is  an 
original  letter  proof  must  be  made  of  the  genuineness 
of  the  signature  thereto.  The  greatest  difficulty, 
however,  is  encountered  by  lawyers  when  it  is  desired 
to  offer  in  evidence  copies  of  original  instruments. 
Some  of  these  difficulties  will  be  referred  to  spe- 
cifically. It  is  never  allowable  to  offer  in  evidence 
a  part  of  a  written  document,  but  all  of  the  document 
which  forms  the  subject  of  dispute  between  the  par- 
ties must  be  offered  or  none  of  it  will  be  received. 

Notice  to  Produce. 

Whenever  it  is  desired  to  produce  in  evidence  a 
copy  of  an  instrument  in  writing  it  is  necessary  that 
a  notice  be  given  in  advance  to  produce  in  court  the 
original  of  such  writing.  This  notice  must  spe- 
cifically describe  the  instrument  to  be  produced  and 
reasonable  time  must  be  allowed  between  the  giving 
of  the  notice  and  the  date  of  trial  for  its  production. 
If  there  is  no  copy  of  the  instrument  in  existence 
and  the  original  has  been  lost,  proof  must  be  clearly 
made  that  the  original  cannot  be  found  and  that  a 
diligent  search  has  been  made  for  it  in  all  places 
where  the  same  might  reasonably  be  expected  to  be 
found. 

The  most  frequent  occasion  for  such  a  notice  arises 
when  it  is  desired  to  introduce  in  evidence  copies  of 
telegrams  and  letters. 

How  to  Prove  a  Telegram. 

No  more  frequent  mistake  is  made  by  lawyers  than 
assuming  that  the  telegram  received  is  always  the 


TRYING  A  CASE  17 

original  and  that  no  notice  is  necessary  before  offer- 
ing it  in  evidence.  Whether  the  telegram  received 
is  the  original  or  only  a  copy  depends  entirely  upon 
the  circumstances  of  each  case.  If  the  sender  of  a 
telegram  acts  upon  his  own  initiative  in  sending  it 
the  instrument  signed  by  him  and  delivered  to  the 
office  of  the  telegraph  company  is  the  original  and 
the  one  received  at  the  other  end  of  the  line  is  a 
copy;  but  if  the  message  has  been  sent  in  response 
to  a  request  from  the  one  receiving  it,  then  the 
message  received  is  the  original.  When  one  of  two 
litigants  has  requested  the  other  to  use  the  telegraph 
in  reply  he  thereby  makes  the  telegraph  company  his 
agent  for  the  purpose  of  that  reply,  and  as  between 
the  two  the  message  received  is  the  original. 

How  to  Prove  a  Letter. 

Where  correspondence  has  passed  between  the  par- 
ties involved  in  a  law  suit  and  it  is  desired  to  offer 
all  or  any  part  of  this  in  evidence,  a  careful  tabula- 
tion of  such  correspondence  should  be  made  before 
the  trial  and  a  notice  served  on  the  opposite  party 
to  produce  all  original  correspondence.  Such  notice 
must  be  specific  as  to  the  date  and  character  of  the 
communications. 

No  lawyer  should  rely  upon  his  opponent's  pro- 
ducing the  originals  in  compliance  with  the  notice, 
but  the  former  must  carefully  prepare  himself  to 
prove  the  contents  of  such  letters  by  introducing 
copies  of  the  same.  In  order  to  do  this  he  must  be 
able  to  show  who  wrote  the  letters,  who  signed  them, 
and  who  mailed  them.    It  is  never  sufficient  simply 


18  MODERN  AMERICAN  LAW  LECTURE 

to  testify  that  such  letters  were  mailed,  but  it  must 
be  affirmatively  shown  that  the  letters  were  put  in 
envelopes,  the  envelopes  sealed  and  properly  ad- 
dressed, then  stamped  and  dropped  into  the  post 
office.  It  is  sufficient  if  a  letter  was  put  into  the 
mail  chute  in  an  office  building  or  business  block. 

HOW  TO  PROVE  A  BOOK  ACCOUNT. 

What  books  of  account  may  be  admitted  in  evi- 
dence? Great  confusion  exists  in  the  minds  of  the 
legal  fraternity  on  this  subject  and  woeful  blunders 
are  daily  made  in  court  because  attorneys  erroneously 
suppose  that  any  book  in  which  is  kept  a  memoran- 
dum of  a  transaction  between  the  parties  in  the  suit 
is  admissible  in  evidence  to  prove  such  transaction. 
Book  accounts  are  always  self-serving  declarations 
and  are  allowed  in  evidence  only  upon  the  theory 
that  the  entries  in  them  were  made  in  due  course  of 
business  at  the  time  the  transactions  occurred  and 
are,  therefore,  entitled  to  much  weight. 

Generally  only  such  books  are  admissible  as  show 
a  series  of  transactions  between  the  parties,  such  as 
goods  sold  and  delivered,  or  services  performed  from 
time  to  time.  A  mere  entry  in  a  book  by  one  of 
the  parties  of  a  single  isolated  transaction,  or  the 
entry  of  an  order  or  series  of  orders  for  goods,  does 
not  render  such  books  admissible.  The  recording  in 
a  book  of  the  number  of  hours  or  days  spent  in  doing 
certain  work  does  not  make  that  book  competent.  It 
may  be  used  to  refresh  the  recollection,  but  it  is  not 
generally  admissible  in  evidence. 


TRYING  A  CASE  19 

In  order  to  render  a  book  of  account  admissible 
great  care  must  be  taken  to  lay  the  proper  foundation 
by  showing  who  made  the  entries,  how  and  when  they 
were  made,  and  that  the  same  are  true  and  correct. 
The  parties  making  the  entries  must  testify  to  them 
unless  it  is  shown  they  cannot  be  produced,  in  which 
event  anyone  who  has  personal  knowledge  of  them 
and  of  their  correctness  may  testify. 


HOW  TO  PROVE  A  TELEPHONE  CONVERSATION. 

The  fundamental  rule  governing  all  telephone  con- 
versations is  that  before  they  can  be  admitted  in 
evidence  the  parties  to  such  conversations  must  be 
clearly  identified.  The  general  rule  is  that  the  party 
seeking  to  testify  to  such  conversation  must  have 
recognized  the  voice  of  the  person  with  whom  he 
talked.  This  rule  is  not  always  controlling.  If  the 
identity  can  be  reasonably  established  in  any  other 
way  the  conversation  is  competent.  If  a  business 
house  is  equipped  with  telephones  it  thereby  invites 
those  dealing  with  it  to  use  them,  and  if  a  course 
of  business  is  established  through  telephone  commu- 
nication one  may  testify  to  a  conversation  had  with 
someone  whose  voice  he  recognizes  as  of  one  with 
whom  he  has  talked  before  in  the  regular  course  of 
business  with  such  house,  although  he  may  not  know 
who  the  party  is  or  what  is  the  extent  of  his  author- 
ity. The  Supreme  Court  of  Illinois  said  (225  111. 
572) : 

"  Where  a  person  places  himself  in  connection  with 
the  telephone  system  through  an  instrument  in  his 


20  MODERN  AMERICAN  LAW  LECTURE 

office  he  thereby  invites  communication  through  that 
channel.  *  *  *  The  fact  that  the  voice  at  the 
telephone  was  not  identified  does  not  render  the  con- 
versation inadmissible.' ' 


TESTIMONY  OF  HUSBAND  AND  WIFE. 

Every  lawyer  should  familiarize  himself  with  the 
law  of  his  forum  affecting  the  testimony  of  husband 
and  wife  for  or  against  each  other.  Most  lawyers, 
having  become  familiar  with  the  common  law  rule 
which  denies  the  right  of  either  one  to  testify  for  or 
against  the  other,  assume  that  this  rule  governs  in 
all  cases,  when  in  fact  the  rule  has  been  modified  in 
nearly  every  state  of  the  Union.  In  several  states 
the  relationship  of  husband  and  wife  has  no  effect 
upon  their  competency  as  witnesses.  This  is  true  in 
New  York,  Kansas,  Maine,  Maryland,  Florida,  and 
South  Dakota.  In  Illinois  the  husband  may  testify 
for  his  wife  in  any  case  involving  her  private  prop- 
erty. The  wife,  however,  cannot  testify  for  the 
husband  under  the  same  circumstances.  If  both  are 
injured  in  an  accident  he  may  testify  for  her,  but 
she  cannot  testify  for  him.  In  some  forms  of  actions 
they  may  testify  against  each  other,  as  in  divorce 
proceedings  or  actions  for  wife  abandonment,  or  for 
an  injury  to  the  person  of  one  of  them  by  the  other. 

HOW  TO  IMPEACH  A  WITNESS. 

There  are,  in  general,  two  ways  to  impeach  a 
witness : 

1.    By  showing  that  he  has  made  statements  at 


TRYING  A  CASE  21 

other  times  and  places  different  from  those  made 
upon  the  witness  stand. 

2.  By  showing  that  his  reputation  for  truth  and 
veracity  is  bad  among  his  neighbors  and  business 
associates. 

In  order  to  make  the  first  proof  it  is  always  nec- 
essary to  lay  the  proper  foundation  by  asking  the 
witness  sought  to  be  impeached  whether  or  not  he 
made  the  specific  statements  which  it  is  claimed  vary 
from  his  testimony  given  upon  the  trial.  It  is  always 
essential  that  the  time,  place,  and  persons  to  whom 
such  statements  are  alleged  to  have  been  made  be 
included  in  the  question  put  to  the  witness.  When 
witnesses  are  afterwards  called  to  prove  the  alleged 
contrary  statements  they  must  be  asked  the  same 
question  put  to  the  witness  sought  to  be  impeached. 
They  cannot  be  asked  to  relate  a  conversation  had 
with  such  witness.  If  it  is  desired  to  impeach  a 
witness  by  showing  that  he  made  a  statement  in 
writing  at  some  previous  time  and  signed  it,  such 
statement  should  be  first  shown  to  the  witness,  or  his 
attention  called  to  it,  and  he  should  be  given  an 
opportunity  to  explain  or  correct  the  statement.  If 
he  denies  the  statement  contained  in  such  writing  the 
writing  may  then  be  offered  in  evidence, 

HOW  TO  PROVE  DAMAGES. 

No  other  rules  of  procedure  are  as  difficult  of 
application  as  those  having  reference  to  the  methods 
of  proving  damages.  In  nearly  every  case  the  plain- 
tiff is  called  upon  to  make  proper  proof  of  the 


22  MODERN  AMERICAN  LAW  LECTURE 

damages.  If  the  issue  is  merely  one  involving  a  sale 
and  delivery  of  goods  at  a  fixed  price  the  question  does 
not  arise.  In  more  than  four-fifths  of  all  trials 
expert  testimony  is  required  to  prove  the  damages 
before  there  can  be  a  recovery.  If  one  works  by  the 
hour,  by  the  day,  by  the  week,  or  by  the  month,  with- 
out a  specific  contract,  expert  testimony  is  necessary 
to  determine  what  is  the  usual  and  customary  wages 
paid  for  that  service.  If  work  is  performed  by  one 
party  for  another  without  a  specific  agreement  as  to 
price,  the  question  of  the  value  of  such  work  must 
always  be  proved  by  one  familiar  with  the  usual 
and  customary  charge  for  doing  the  same.  Thus,  a 
doctor  or  lawyer  must  be  called  to  prove  the  value 
of  medical  or  legal  services  rendered.  The  bill  ren- 
dered by  the  doctor  or  the  lawyer  involved  in  the 
litigation,  or  the  amount  paid  by  the  patient  or  the 
client,  are  not  competent  evidence  of  the  value  of 
the  services  rendered. 

If  a  machinist  works  upon  your  machine  without 
a  specific  contract  he  can  only  prove  the  value  of  his 
work  by  showing  what  is  the  usual  and  customary 
price  for  such  work.  His  books  are  never  admissible 
in  evidence  to  prove  his  charge,  nor  is  it  proper  for 
him  or  anyone  to  testify  that  any  given  number  of 
hours  or  days  were  devoted  to  the  work,  unless  the 
witness  testifies  that  he  either  did  the  work  himself 
or  directly  supervised  it,  and  knows  of  his  own 
knowledge  that  the  work  was  done  and  the  time  was 
actually  spent  in  doing  the  same. 


TRYING  A  CASE  23 

HOW  TO  PROVE  MARKET  VALUE. 

If  the  article  which  is  the  subject  of  litigation  has 
a  market  value,  proof  of  such  value  must  always  be 
given  by  one  familiar  with  the  trade  in  such  com- 
moditv.  Bv  reason  of  the  fact  that  the  market  value 
of  any  article  is  always  more  or  less  fluctuating,  the 
testimony  given  must  be  more  or  less  uncertain  and 
must,  in  a  large  degree,  be  the  expression  of  the 
opinion  of  the  witness.  For  this  reason  a  proper 
foundation  for  the  testimonv  must  be  laid  bv  show- 
ing  that  the  witness  has  had  some  experience  and 
familiarity  with  the  subject.  Unless  this  is  done  he 
will  not  be  permitted  to  testify. 

The  greatest  difficulty  arises  where  the  subject  of 
the  litigation  has  no  established  market  value,  such 
as  second-hand  goods,  or  the  value  of  an  employ- 
ment which  is  outside  of  the  regular  professions  or 
trades.  In  these  instances  the  damages  can  only  be 
approximated  and  no  lawyer  should  enter  upon  the 
trial  of  a  case  which  involves  such  questions  without 
having  first  carefully  and  thoroughly  studied  the 
precedents  that  have  been  established  in  his  juris- 
diction for  such  proof. 

PREPARING  INSTRUCTIONS. 

Where,  under  the  prevailing  practice,  instructions 
are  prepared  by  counsel  for  the  respective  parties 
and  submitted  to  the  court,  the  greatest  care  must 
be  exercised  in  drafting  them.  As  a  rule  the  plain- 
tiff should  submit  but  few  instructions.    He  should 


24  MODERN  AMERICAN  LAW  LECTURE 

always  remember  that  the  burden  is  on  him  not  only 
to  obtain  a  judgment  but  to  sustain  that  judgment 
in  a  court  of  review.  A  misstatement  of  the  law  in 
a  single  instruction  offered  on  his  behalf  will  very 
often  defeat  his  cause.  It  is  much  better  to  rely  for 
a  verdict  upon  a  clear  and  forceful  argument  to  the 
jury. 

The  defendant  can  afford  to  submit  a  larger 
number  of  instructions  touching  upon  his  theory  of 
the  case,  for  often  delay  by  reversal  of  the  cause 
means  a  victory  for  him.  In  drafting  instructions 
much  care  should  be  exercised  to  make  them  as  clear 
and  comprehensive  as  possible.  Involved  instruc- 
tions are  always  to  be  avoided.  Particular  care 
should  be  taken  to  see  that  the  instructions  are 
drawn  upon  some  logical  theory  of  the  case.  Unless 
this  is  done  the  sum  total  effect  upon  the  jury  is  to 
confuse  it  doubly. 

ARGUING  A  DEMURRER  TO  THE  EVIDENCE. 

In  all  trials  counsel  should  always  be  prepared  to 
argue  the  legal  questions  that  will  be  raised  by  a 
demurrer  to  the  evidence  either  at  the  close  of  plain- 
tiff's case  or  at  the  close  of  all  the  evidence.  In 
making  this  argument  lawyers  should  remember  that 
courts  are  not  generally  influenced  by  the  number 
of  cases  presented  but  rather  by  the  authority  of  such 
cases. 

It  is  of  the  utmost  importance  in  an  argument 
of  this  kind  that  the  best  case  that  counsel  can  pro- 
duce touching  upon  the  questions  involved  be  first 


TRYING  A  CASE  25 

presented  to  the  court.  To  cite  as  your  first  case  one 
that  is  not  in  point  or  not  binding  upon  the  court 
at  once  leaves  an  impression  upon  the  mind  of  the 
court  that  counsel  citing  it  either  does  not  understand 
his  case  or  has  but  little  faith  in  it.  Courts  continu- 
ally contend  with  this  haphazard  method.  Too  often 
it  leads  to  hasty  conclusions  and  ' l  bad  law. ' :  No  case 
should  ever  be  cited  as  an  authority  that  is  not  in 
point,  for  such  conduct  only  weakens  an  argument. 
It  may  sometimes  occur  that  no  precedent  can  be 
found  that  will  exactly  fit  the  facts  of  the  case  at 
bar.  Seldom,  however,  will  a  question  be  raised  but 
that  some  authority  can  be  found  to  throw  light 
upon  it. 

CLOSING  ARGUMENT. 

A  jury  is  like  a  great  organ  with  twelve  keys,  each 
key  connected  with  a  thousand  sensitive  strings.  The 
notable  lawyers  of  the  world  have  been  the  men  who 
play  upon  this  instrument  in  such  a  way  that  all  its 
strings  vibrate  in  perfect  harmony.  It  takes  only  one 
discordant  note  to  destroy  the  harmony.  One  juror 
unconvinced  means  defeat.  Earnestness  is  the  great- 
est asset  of  the  lawyer  at  this  stage  of  the  trial.  The 
jury  must  be  made  to  feel  that  the  lawyer  means  just 
what  he  says,  and  believes  absolutely  in  the  justice 
of  his  cause. 

In  reviewing  the  evidence  any  attempt  to  misrep- 
resent an  opponent  or  to  treat  him  unfairly  generally 
reacts  with  disastrous  effect.  One  should  always  state 
his  adversary's  position  fairly,  then  proceed  to  point 
out  its  weakness. 


26  MODERN  AMERICAN  LAW  LECTURE 

Lawyers  often  fail  by  attempting  to  discuss  in 
detail  the  testimony  of  all  the  witnesses  throughout 
the  trial  in  the  order  in  which  thev  were  called  to 
the  stand.  The  greatest  effectiveness,  however,  in 
the  closing  argument  is  achieved  by  putting  the  most 
emphasis  upon  the  testimony  of  your  own  witnesses 
and  then  appropriating  from  the  testimony  of  your 
opponent's  witnesses  whatever  strengthens  your 
cause. 

Beware  of  story-telling;  this  is  a  waste  of  precious 
time  and  detracts  from  your  earnestness.  A  story 
that  is  in  the  slightest  degree  off-color  will  be  re- 
sented by  at  least  one  man  on  the  jury.  Besides  it 
is  always  difficult  to  tell  a  new  story,  and  it  is  always 
unwise  to  tell  an  old  one. 

Avoid  calling  witnesses  " liars."  They  may  be 
liars  but  your  brutal  frankness  is  more  likely  to 
arouse  sympathy  for  them  than  to  convict  them  of 
falsifying. 

CONCLUSION. 

Let  none  forget  that  the  only  purpose  of  a  trial  is 
to  ascertain  the  truth.  Every  effort  of  judge,  jury, 
and  lawyers  must  be  directed  toward  this  end.  It  will 
often  appear  that  an  adherence  to  certain  well-estab- 
lished rules  of  procedure  will  result  in  a  miscarriage 
of  justice.  No  law  was  ever  made  which  did  not 
operate  unjustly  at  some  time.  All  laws  must  be 
tested  as  to  whether  they  work  the  greatest  good  to 
the  greatest  number.  For  instance,  the  innocent 
holder  for  value  of  a  promissory  note  is  often  the 
guilty  holder  of  it.    But  experience  has  shown  that 


TRYING  A  CASE  27 

the  rule  involved  is  the  best  to  safeguard  the  rights 
of  the  general  public. 

When  Sir  Walter  Raleigh  was  upon  trial  for  his 
life  he  demanded  that  the  witnesses  against  him  be 
compelled  to  face  him  in  court.  This  demand  was 
ignored  by  the  Lord  Chief  Justice  of  England,  who 
said  that  if  such  a  rule  was  established  it  would 
result  in  freeing  every  guilty  man  then  confined  in 
English  prisons.  Sir  Walter  replied  that  if  such  a 
rule  was  not  established  it  would  result  in  filling 
English  prisons  with  innocent  men  and  women.  Sub- 
sequent events  have  proved  that  Raleigh  was  right, 
and  today  the  rule  for  which  he  contended  lies  at  the 
foundation  of  our  civil  liberty. 

Every  lawyer  ought  to  feel  that  he  belongs  to  the 
noblest  of  professions.  For  upon  him,  more  than 
upon  any  other,  rests  the  responsibility  of  preserv- 
ing to  us  our  right  to  life,  liberty,  and  the  pursuit 
of  happiness. 


Cjcfulora  — — 

GAYLAMOUNT  ty      . 
PAMPHIET  BINDER 
Syrocuse,  N.Y. 
Stockton,  Colif.  ; 


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